The state of
California has failed to provide judges with salary increases mandated by
statute, Los Angeles Superior Court Judge Elihu Berle has ruled.

In a decision
issued Wednesday, Berle sided with the state’s judges in a class action brought
by retired Court of Appeal Presiding Justice Robert Mallano. Mallano filed suit
in January of last year, four weeks before he retired from the bench, naming
then-state Controller John Chiang and others as defendants.

Berle said the
judges are entitled to a declaration that the state has not paid them the
amounts mandated by Government Code §68203.

That section
provides that judicial salaries “shall be increased” each year by the average
percentage of salary increases of state employees, and shall not be subject to
the discretion of state officials.

Years of
Non-Complience

Berle said the
state has been out of compliance with the statute since 2008. He rejected the
argument that “decreases” in state employee compensation, including those
resulting from furloughs imposed during the fiscal years beginning July 1, 2009
and July 1, 2010, should be figured into the calculation.

The state’s
position, he said, was contrary to the plain statutory language.

State employees,
Berle noted, receive average salary increases of 0.97 percent for fiscal year
2007-08, and increases of 0.10 percent and 0.11 percent in the following two
years. There were then no increases for two years; and then increases of 0.22
percent, 1.83 percent, and 2.4 percent for FY 2013-14, 2014-15, 2015-2016,
respectively, the judge said, citing California Department of Human Resources
(“CalHR”) statistics.

The judges, he
declared, are entitled to their mandated increases, based on the CalHR statistics,
plus interest of 10 percent per year, court costs, and attorney fees pursuant
to the private attorney general statute.

Harris Blasted

Mallano’s
attorney, Raoul D. Kennedy of Skadden Arps in Palo Alto, told the MetNews he
hoped “we can bring this matter to closure.” He criticized Attorney General
Kamala Harris for opposing the judges, suggesting she was “too busy running for
the [U.S.] Senate to stop her people from taking unprincipled positions.”

The attitude of
state officials, he said, was that the judges didn’t deserve the raises because
“they haven’t suffered through the agony of the recession with the rest of us.”
But there is “no pain exception in the statute,” he said, adding that the
judges in fact did their share, because 90 percent of them heeded calls from
branch leaders to take voluntary pay cuts as the economy declined and court
budgets were slashed.

A spokesperson
for the attorney general referred a request for comment to the Controller’s
Office. But a spokesperson for Chiang’s successor, Controller Betty Yee, said
the office would have no comment because its role in the process is
“ministerial,” since it pays whatever amounts CalHR tells it to pay, in what
are called “exempt pay letters” or “written pay letters.”

The controller
asserted the lack of such letters as a defense to Mallano’s action, but Berle
noted in his decision that the issuance of such a letter is not a prerequisite
to payment under the statute.

At the time the
action was filed, Mallano estimated that the plaintiff class consisted of at
least 1,600 active judges and justices, and at least 1,800 judicial retirees,
pension beneficiaries, and survivors, whose benefits are tied to judicial
salaries.